Kapil Sibal says withdrew petition as SC refused to say who referred case to 5-judge bench

Senior counsel Kapil Sibal, appearing in the Supreme Court for two Congress MPs Pratap Singh Bajwa and Amee Yajnik, on Tuesday withdrew their petition against Rajya Sabha Chairman M Venkaiah Naidu's rejection of an impeachment motion against Chief Justice of India Dipak Misra. The Rajya Sabha MPs had moved the top court on Monday.

Sibal, who is also one of the signatories of the impeachment notice, had on Monday mentioned the petition for urgent listing before a bench headed by Justice J Chelameswar. The bench, also comprising Justice SK Kaul, asked Sibal and advocate Prashant Bhushan to mention the matter before the CJI for urgent listing, citing a Constitution bench judgment on powers of master of roster.

Overnight, a five-judge constitution bench in the Supreme Court was constituted by the CJI on Monday to hear the matter on Tuesday. The list of business for the Supreme Court showed that the petition would be heard on Tuesday by a bench comprising Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel.

Significantly, the matter was not listed before the judges who are number two to five in the seniority—Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph—who had held a press conference on January 12 in which they had raised concerns about the independence of the judiciary.

On Tuesday, the the five-judge Constitution Bench headed by Justice AK Sikri did not agree to Sibal’s plea for a copy of the administrative order which led to the bench being set up on Monday, and asked Sibal to argue the main matter challenging Naidu's order on merits. Sibal argued that the matter could be referred to a Constitution Bench only by a judicial order, and wondered how could it be done by an administrative order, Justice Adarsh Kumar Goel asked if there was a bar on directly referring the matter to a five-judge bench by the latter process.

"You (want) to challenge that (administrative order setting up five-judge bench) for what outcome?" Justice Sikri asked Sibal, who told the bench: "You must say who passed the order. I must have the copy of the order so that I can challenge it."

The bench reminded Sibal that at the outset of the hearing he had said that he has no personal agenda and was for upholding the dignity of the court. "Will the dignity of the court be jeopardised if you give me that (administrative) order (constituting five judge bench). It is not a secret document under the National Security Act," Sibal countered.

Attorney General KK Venugopal, appearing for Rajya Sabha Chairman Naidu, said the Chief Justice had discretionary powers on the administrative side to allocate any matter to any bench of whatever strength. Venugopal, who questioned the maintainability of the petition by the two Congress lawmakers, said the notice for the motion for the removal of Chief Justice Misra was moved by 64 MPs belonging to seven political parties including Congress but only two of the signatories had moved the court challenging the April 23 decision. The Attorney General suggested: "Let 50 of the 64 MPs who had moved the notice of removal pass a resolution authorising Bajwa and Yajnik to move the court."

Taking a jibe at Venugopal's argument, Sibal asked why two people could not challenge the decision and asked him if the remaining 62 have told him that they did not support Bajwa and Yajnik. "I will satisfy you. I will bring 60. You will be satisfied," Sibal told Venugopal.

Sibal then withdrew the petition.

Senior advocate Prashant Bhushan said “It is sad that this bench fixed by the CJI to hear the challenge to rejection of his impeachment motion, even refused to provide a copy of the administrative order by which the bench was constituted! That order could be challenged on the ground that CJI had a conflict of interest”.

Who passed the order to constitue the bench, asks Kapil Sibal

Speaking at a press conference at Congress headquarters after the hearing, Sibal said "We wanted to know who passed the order that our petition would be heard by a five-judge bench. Normally, reference to such a bench is made by a judicial order. But there is no judicial order here. So who passed the order?"

He said Supreme Court rules do not allow the Chief Justice to pass an administrative order to refer a matter to a five-judge bench on the ground that a "substantial question of law as to the interpretation of the Constitution arises in the case".

"If such an order has been passed by the Chief Justice, although the petition pertains to his own impeachment, then we should be given a copy of the order, as we are entitled to it, so that we can study it. They (bench) did not answer our question and asked us to argue on the merits of the case. We told them we could not argue the case until we get a copy of the order. So we withdrew the petition," he added.

Sibal also demanded to know if there was "any order by any constitutional authority in India" that could not be challenged in the Supreme Court.

"We submitted if their lordships felt that the Rajya Sabha Chairman's decision is something that cannot be challenged, then they should tell us as much," said Sibal, who appeared for the two Congress MPs.

On April 20, members from seven opposition parties led by the Congress submitted a notice to Chairman Naidu to initiate impeachment proceedings against Chief Justice Misra on five counts of "misbehaviour".

Naidu rejected the notice three days later.

Sibal said the Congress did not have a personal grievance against any judge but was raising the matter for the sake of restoring the "dignity and independence" of the judiciary. He pointed out that it were a few senior judges of the Supreme Court and not the Congress who flagged the issue that everything was not right with the apex court.

With IANS inputs.